P STREENIVASA CHETTY AND THANDAYUTHAPANI CHETTI Vs. EMPEROR

JUDGEMENT

(1.) The first accused was convicted of the offence specified in Clause (3) of Section 42 of the Prisons Act, IX of 1894. He was a prisoner in the Penitentiary and the second accused, an uncle of the first accused, who received a wire from a relation at Coimbatore which contained matters pertaining to the first accused, wrote a message on the back of the telegram intending that that writing should be mad by the first accused, and banded the telegram to a Jail Warder who was employed to, and did, carry the telegram to the first accused in Jail. The latter, thereupon, reed the telegram as well as the communication written on the back of it and wrote a reply on the back of the same telegram and handed it to the Warder for being carried to the second accused. The Chief Presidency Magistrate convicted the first and the second accused of an offence under Section 42 of the Prisons Act and sentenced each of them to pay a fine of Rs. 200.

(2.) The material portion of the section is as follows: Whoever . . . . communicates or attempts to communicate with any prisoner shall, on conviction before a Magistrate, be liable to imprisonment . . . .." Mr. V.L. Ethiraj, who appears for the accused, admits that the second accused has committed the offence but says that the sentence passed on him is unduly severe. As regards the first accused, he contends that it is communication with a prisoner that is made an offence under the section and that it makes only the person who communicates with a prisoner liable to punishment and that a prisoner cannot communicate with himself and that a prisoner cannot, therefore, commit the offence described in Clause (3) of Section 42. But-the question still remains whether a prisoner may not abet the offence, for, the same section provides that whoever abets any offence shall also be liable to punishment. The word "abet" is not denned by the Prisons Act, but the General Clauses Act, X of 1897, says that the word "abet" shall have the same meaning as in the Indian Penal Code. Under Section 107 of the Indian Penal Code "a person abets the doing of a thing who intentionally aids, by any act, the doing of that thing." It is quite possible for a person to communicate with a prisoner without the latter's aid or co-operation, for instance, a person may walk into the Jail and when the prisoner has no intention to speak to him or does not even expect that the stranger will speak to him, the latter may do so, and the prisoner may unintentionally, without even an effort, hear the word spoken, or, to take another instance, the prisoner may find by accident a piece of paper which has been introduced into his cell without his knowledge; and picking it rip, he may find that it contains a message for him. In these two instance the person who communicates with the prisoner has committed the offence but the communication is made without the co-operation of the prisoner. But, if the prisoner is aware that a certain peice of paper contains a communication intended for him, receives it from the Warder and reads it, I am inclined to think that he has, by his active co-operation, aided the commission of the offence, for he, by his acts, facilitated the commission of it, and, in fact, the commission of the offence would have been impossible without the active participation in it of the prisoner himself.

(3.) In the present case- not only did the prisoner read the letter but he also wrote a reply and handed it to the Warder, who was acting in concert with the accused Nos. 1 and 2. In the view I have taken, it is unnecessary to consider what the effect of this additional act on the part of the prisoner is. It may be noted that the first accused pleaded guilty and the Magistrate thereupon convicted him ; but, altogether apart from this, I am prepared to hold that he was rightly convicted of an offence under Section 42 of the Prisons Act read with Section 107, Indian Penal Code.